Experts say judge's immigration order may be hard for administration to overturn

A nice analysis by Reuters of the injunction issued by a federal judge in Texas yesterday that halted the imp[lementation of President Obama's executive orders on immigration.

The injunction is not based on the president's constitutional overreach, but on an obscure law that requires the executive branch to publish its executive orders in the Federal Register and allow a time for comments. The judge rejected the administration's argument that the new executive orders were exempt from that law.

Experts querried by Reuters believe that the immigration orders may be delayed for many months - perhaps years.

Hanen's ruling turned on the Administrative Procedure Act's requirement that a proposed rule or regulation appear in the Federal Register so people have a chance to comment. The Federal Register is a daily journal of U.S. government proceedings.

The "notice and comment" requirement acts as a brake on all presidents, slowing their plans by months or years.

The requirement, though, does not apply to "interpretative rules" or "legislative rules," an exception that Justice Department lawyers said applied to Obama's announcement in November.

For Hanen, the pivotal question became whether the new rules, such as granting work permits to potentially millions of illegal immigrants, was binding on federal agents or merely general guidance. He ruled that they were binding, and that Obama should have allowed for notice and comment.

Lawyers with expertise in administrative law said there was little guidance from the U.S. Supreme Court on what qualifies as a rule that needs to be published, leaving disagreement among lower courts and a grey area for Hanen to work in.

"The case law as to what qualifies as a legislative rule is remarkably unclear," said Anne Joseph O'Connell, a University of California Berkeley law professor.

LENGTHY PROCESS LOOMS

O'Connell said it was hard to predict how the appeals court would rule in the end, although she thought it was likely the court would lift Hanen's temporary injunction and allow the Obama administration to begin putting its program in place.

The subject is not strictly partisan, she said, because sometimes a liberal interest group might favor a strict requirement for notice and comment.

An appeal before the 5th Circuit could take months, as lawyers file written briefs and the court holds oral argument and comes to a decision.

The appeals court could also consider other questions, such as whether the states that brought the lawsuit had what is known as standing to sue or whether Obama violated the clause of the U.S. Constitution that requires presidents to "take care that the laws be faithfully executed."

All depends now on whether the New Orleans federal court will lift the injunction and allow the executive orders to be implemented while the case is being appealed. If the states can show that implementing the new rules while the ruiling is under appeal will bring them irreparable harm, the injunction will probably remain in place. That's a tough standard to meet, but hardly impossible.

We may know by as early as next week if the injunction will be lifted. Senate Republicans, who are trying to push a DHS funding bill that prevents any funds being used to implement the immigration orders, should sit on their hands until the issue of the injunction is settled. There is some talk about temporarily funding DHS for 30 or 60 days while the issue remains unsettled in the courts. That is certainly an option that Mitch McConnell should consider.

 

 

A nice analysis by Reuters of the injunction issued by a federal judge in Texas yesterday that halted the imp[lementation of President Obama's executive orders on immigration.

The injunction is not based on the president's constitutional overreach, but on an obscure law that requires the executive branch to publish its executive orders in the Federal Register and allow a time for comments. The judge rejected the administration's argument that the new executive orders were exempt from that law.

Experts querried by Reuters believe that the immigration orders may be delayed for many months - perhaps years.

Hanen's ruling turned on the Administrative Procedure Act's requirement that a proposed rule or regulation appear in the Federal Register so people have a chance to comment. The Federal Register is a daily journal of U.S. government proceedings.

The "notice and comment" requirement acts as a brake on all presidents, slowing their plans by months or years.

The requirement, though, does not apply to "interpretative rules" or "legislative rules," an exception that Justice Department lawyers said applied to Obama's announcement in November.

For Hanen, the pivotal question became whether the new rules, such as granting work permits to potentially millions of illegal immigrants, was binding on federal agents or merely general guidance. He ruled that they were binding, and that Obama should have allowed for notice and comment.

Lawyers with expertise in administrative law said there was little guidance from the U.S. Supreme Court on what qualifies as a rule that needs to be published, leaving disagreement among lower courts and a grey area for Hanen to work in.

"The case law as to what qualifies as a legislative rule is remarkably unclear," said Anne Joseph O'Connell, a University of California Berkeley law professor.

LENGTHY PROCESS LOOMS

O'Connell said it was hard to predict how the appeals court would rule in the end, although she thought it was likely the court would lift Hanen's temporary injunction and allow the Obama administration to begin putting its program in place.

The subject is not strictly partisan, she said, because sometimes a liberal interest group might favor a strict requirement for notice and comment.

An appeal before the 5th Circuit could take months, as lawyers file written briefs and the court holds oral argument and comes to a decision.

The appeals court could also consider other questions, such as whether the states that brought the lawsuit had what is known as standing to sue or whether Obama violated the clause of the U.S. Constitution that requires presidents to "take care that the laws be faithfully executed."

All depends now on whether the New Orleans federal court will lift the injunction and allow the executive orders to be implemented while the case is being appealed. If the states can show that implementing the new rules while the ruiling is under appeal will bring them irreparable harm, the injunction will probably remain in place. That's a tough standard to meet, but hardly impossible.

We may know by as early as next week if the injunction will be lifted. Senate Republicans, who are trying to push a DHS funding bill that prevents any funds being used to implement the immigration orders, should sit on their hands until the issue of the injunction is settled. There is some talk about temporarily funding DHS for 30 or 60 days while the issue remains unsettled in the courts. That is certainly an option that Mitch McConnell should consider.